Daniel Burnett is a partner at Owen Bird Law Corporation and appeared before the Supreme Court of Canada on behalf of the Respondent/Defendant, Jon Newton, in this matter.
[IP Osgoode: At our request, Robert Kasting, Barrister & Solicitor, who appeared before the Supreme Court of Canada on behalf of the Appellants/Plaintiffs, Wayne Crookes and West Coast Title Search Ltd., also commented on the court's decision. His comment can be read here. We are grateful to counsel on both sides of the case for participating in the discussion on this important decision and hope this ignites further comments from our readers.]
With the Supreme Court of Canada decision of October 19, 2011 in Crookes v Newton, Internet publishers across Canada can breathe a sigh of relief. The court ruled that mere hyperlinks do not constitute “publication” of the linked site so as to make the hyperlinker liable if the site contains defamatory statements.
Imagine if the ruling were otherwise. Would we all be required to check, and then continually monitor, all to which we have hyperlinked? Would search engines be able to operate given that they display results as a list of links?
The hyperlink is what makes the World Wide Web a web, and the concept of free linking is what allows web communications to flourish. As Sir Tim Berners-Lee wrote in 1997:
"The ability to refer to a document (or a person or any thing else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else. … On the web, to make reference without making a link is possible but ineffective - like speaking but with a paper bag over your head."
The Supreme Court recognized that the traditional definition of publication in libel law – conveying information to a third party by any means – if applied literally in the Internet era, could have staggering consequences upon the free flow of online expression. In an explicit recognition that the law needs to adjust to modern reality, the court held that linking without repetition of the defamatory words was not actionable publication.
One of the big questions when we argued the case before the Supreme Court last December was whether the ruling would include an exception for “endorsing” the article, as the courts below had done. We asked the court to describe any exception in the narrowest possible terms, as an “endorsing” test is fraught with areas of grey and future arguments, leaving little safety for any hyperlinker.
While a minority of McLachlin, CJ and Fish, J were inclined toward an “endorsement” exception, the majority recognized that a stricter test was required, and settled on a bright line test that excludes anything short of actually repeating the defamatory content. That would mean saying “Everyone should read this” is not publication even if “this” links straight to a defamatory third party statement. The principle is that the remedy lies against the defamer, not the hyperlinker.
The key ruling is at paragraph 42:
“Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked site in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by the hyperlinker.”
Notice that the ruling applies to any reference to a publication, not just references by hyperlink. That means, for example, simply encouraging an audience to read a certain article and describing where it can be found would not qualify as publication.
What’s next? The decision, emphasizing the importance of the free flow of expression on the Internet and the need to modify old “publication” tests to accord with modern reality, seems to set the table for what I regard as the biggest Internet defamation issue of all: the broader question of when a person is liable for third party words. On the Internet, that issue arises with ISP’s, webhosts, media sites allowing reader comments, even your Facebook page.
The Americans settled on a statutory immunity for third party words in s. 230 of the Communications Decency Act. In the spirit of placing liability where it belongs, namely on defaming authors and not on those who merely facilitate the dialogue that characterizes the modern web. Let’s hope that our courts or legislatures move in the same direction.